Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 16 FSCO A14-006115

BETWEEN:

JOHN LAMASAN Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Lynda Tanaka

Heard: In person at ADR Chambers on November 8 and 9, 2016

Appearances: Mr. David Carranza, Licensed Paralegal, for Mr. John Lamasan Ms. Alysha Bayes, Counsel, for Certas Direct Insurance Company

Issues:

The Applicant, Mr. John Lamasan, was injured in a motor vehicle accident on December 14, 2013 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Is the Applicant entitled to receive a weekly income replacement benefit at the rate of $111.53 per week, from December 21, 2013 to September 20, 2014, less any amounts paid?

2. Are the benefits to which the Applicant is entitled as a result of the motor vehicle accident limited to the benefits under the Minor Injury Guideline (“MIG”)?²

3. Is the Applicant entitled to receive a medical benefit claimed in the amount of $2,572.48, for psychological treatment by Bodnar & Associates, as per an OCF-18 dated August 27, 2014?

4. Is the Applicant entitled to payment for the cost of an examination in the amount of $2,001.78, for a psychological assessment by Bodnar & Associates, as per an OCF-18 dated March 17, 2014?

5. Is the Applicant entitled to receive payment for an expense of $2,260.00, for an Accountant’s Report by Great Oak VFA Inc., dated April 25, 2014?

6. Is the Applicant entitled to payment for the cost of an examination in the amount of $1,994.72, as per an OCF-18 dated November 4, 2015, by Dr. F. Langer of Healthway Medical Management?

7. Is the Applicant entitled to interest for the overdue payment of benefits?

8. Is either party entitled to its expenses of the Arbitration?

Results:

1. The Applicant is entitled to receive a weekly income replacement benefit at the rate of $111.53 per week, from December 21, 2013 to September 20, 2014, less any amounts paid.

2. The benefits to which the Applicant is entitled as a result of the motor vehicle accident are not limited to those under the MIG.

3. The Applicant is entitled to receive a medical benefit claimed in the amount of $2,572.48, for psychological treatment by Bodnar & Associates, as per an OCF-18 dated August 27, 2014.

4. The Applicant is entitled to payment for the cost of examination in the amount of $2,001.78, for a psychological assessment by Bodnar & Associates, as per an OCF-18 dated March 17, 2014.

5. The Applicant is entitled to receive payment for an expense of $2,001.78, for an Accountant’s Report by Great Oak VFA Inc., dated April 25, 2014.

6. The Applicant is entitled to payment for the cost of examination in the amount of $1,994.72, as per an OCF-18 dated November 4, 2015, by Dr. F. Langer of Healthway Medical Management.

7. The Applicant is entitled to interest for the overdue payment of benefits.

8. The Applicant is the successful party and is entitled to his expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Legislation and Case Law

The claims are for income replacement benefits which are set out in Part II of the Schedule; for cost of examination under s. 25 of the Schedule; and for medical benefits under s. 14 and s. 15 of the Schedule.

Under s. 14 of the Schedule, the Insurer is liable to pay medical benefits being all reasonable and necessary expenses for the medical services listed in s. 15(1) incurred by or on behalf of the insured person as a result of the accident. Under s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable with respect to an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500.00, less the sum of all amounts paid in respect of the insured person in accordance with the MIG.

Part VII of the Schedule set out the General Exclusions and s. 38 deals with medical benefits and approval of assessments. Under s. 38(9), if the Insurer believes that the MIG applies to the insured person’s impairment, the notice given by the Insurer in response to a Treatment and Assessment Plan must so advise the insured person. Under s. 38(11), if the Insurer fails to give the notice under subsection 8, the Insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

Section 25 deals with costs of examinations and requires an Insurer to pay reasonable fees charged by a health care professional for preparing assessments, specifically for reviewing and approving a treatment plan. The fees are limited by regulation.

There is no dispute that the Applicant bears the onus to establish that he fits within the scope of coverage.³

Certas’ resistance to these claims largely rests on an attack on the credibility of the Applicant. Therefore, the principles set out in the Faryna v. Chorny decision of the British Columbia Court of Appeal⁴ are relevant. The evidence of the Applicant must be examined for consistency with the probabilities that surround the exiting conditions and, to be credible, the evidence must be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. I note that nowhere in any of the medical reports is there any suggestion that the Applicant has exaggerated or amplified his impairments or pain or inhibited his movements voluntarily during assessments, and that in several assessments there are direct findings to that effect.⁵ Further, I note that the Applicant has readily acknowledged that his wrist injury and headaches suffered in the accident have resolved and this case is really about two impairments that remain.

To establish that a medical Treatment and Assessment Plan is reasonable and necessary, the Applicant must show the sufficiency of the medical reasons supporting the plan and the effectiveness of the treatment. In Chan and CAA Insurance Company (Ontario),⁶ Arbitrator Sapin set out the criteria for the assessment of treatment plans. The Arbitrator must examine the goals of the plan for reasonableness, and the appropriateness of them and of the treatment for the individual. The cost, investment of time and effort, energy and expertise must also be assessed for reasonableness, taking into consideration both the degree of success and the availability of other treatment alternatives. Prolonged treatment or treatment of indefinite duration must be assessed to determine if it is promoting dependency or interfering with other aspects of rehabilitation. It is not sufficient to provide generalized assertions of the benefit of the proposed treatment, particularly where the treatment was prolonged and the Applicant had failed to improve. In assessing reasonableness, pain relief measures should not encourage dependency or interfere with rehabilitation.

“Compelling evidence” must be provided, according to Alves and Commercial Union Assurance Company,⁷ and it lies somewhere between subjective belief and generalised assertions on one hand and the type of objective evidence that approaches “scientific certainty” on the other. In assessing reasonableness, Arbitrators have relied on a broad range of evidence including opinions from medical experts, clinical notes and records of treatment providers, formal testing results, and observations of lay persons.⁸

The Accident and the Impairments

The Applicant was driving his 2002 Toyota Corolla on the QEW in poor weather conditions when a sudden white out took away all visibility of the traffic in front of him and other drivers. As the cars in front became visible, he brought his vehicle to a stop without hitting anyone, but another vehicle did hit him and pushed his vehicle into yet another vehicle. He testified that his vehicle ended up at right angles to the direction of travel and had to be towed. Some other vehicles, which were hit or hit others with less resulting damage, drove away, but he, along with other drivers whose vehicles were more severely damaged, were left to wait for a tow truck, and he recalls the cold and worry of that time. His eleven year old vehicle was written off. His initial injury complaints were pain in the lower back and left wrist, headaches and “nervousness in and around vehicles”.⁹

The accident occurred on a Saturday and he went to see his family doctor on the following Monday. His doctor ordered x-rays of the back and wrist, prescribed Tylenol with Codeine, provided reassurance, and recommended physiotherapy.¹⁰ The doctor noted tenderness from L1 to L5 and over the SI joint. He noted guarding due to pain and reduction in the range of motion he expected in both the back and left wrist, with the left wrist being swollen. The x-rays did not show any fractures.

The Applicant obtained treatment as recommended by his family doctor. An OCF-3 Disability Certificate was completed January 3, 2014 by Dr. Kevin Gaymes, DC, at Active Rehabilitation & Chiropractic (“Active”).¹¹ He indicated that the Applicant was substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident, and that he could not return to work on modified hours and/or duties. He also indicated that the Applicant had a complete inability to carry on a normal life and that he was unable to continue in his education program. He said that the Applicant suffered a substantial inability to perform housekeeping and home maintenance services that he normally performed before the accident and anticipated the duration to be 9 to 12 weeks. There was no pre-existing disease, condition or injury. He diagnosed sprains and strains of joints and muscles in the lumbar spine, right sacroiliac joints and lumbosacral muscle, strain of muscles and tendons on the left forearm and of the joints and muscles in the left wrist joint and left elbow joint. He diagnosed acute strain of the joints and muscles of the thoracic and cervical spines.

The Application for Accident Benefits,¹² signed by the Applicant January 17, 2014, indicated that he returned to school on the Monday after the accident. He also indicated that his injuries prevented him from returning to work.

The Joint Arbitration Document Brief contains the attendance records and periodic progress reports by Active,¹³ records of Vaughan Wellness Clinic,¹⁴ and clinical notes and records of the family doctor, Dr. Tai.¹⁵ The Applicant regularly attended for treatment at Active and when he felt his progress had stalled, he moved to the Vaughan Wellness Clinic where Dr. D. Bertolo, a chiropractor, provided treatment. The Applicant testified that the advantage of this clinic was that it was connected to a fitness facility where he was also able to work out.

Certas arranged an independent assessment conducted by a psychologist, Dr. J. Goodman, in response to the OCF-18 by Dr. Ana Bodnar which is in dispute in Issue 4 in April 2014. It also arranged for an assessment by an occupational medicine practitioner, Dr. Kathleen Isles, on July 7, 2014, with respect to the income replacement benefits and whether or not the MIG applied.

In her report (“Isles Report”), Dr. Isles noted the Applicant’s ongoing complaints of pain in his back. She noted that he had good range of motion in the hips and knees but full range of motion in the other joint areas. Under testing for range of motion for the thoracolumbar spine, she noted that he reported pain under testing in the right lower back. Her opinion set out in her report, dated July 21, 2014, was that the Applicant had reached maximal medical recovery and that there was no objective physical impairment. Her opinion was that he suffered uncomplicated soft tissue injuries of the spinal column and left wrist that are minor as defined in the Schedule. Her opinion was that he was not substantially unable to perform the essential tasks of his employment but when she was asked to specify the description of the employment and identify the essential tasks, she wrote “not applicable”.¹⁶

A Disability Certificate completed by the Applicant’s family doctor, Dr. Tai, was forwarded to Certas on July 30, 2014. The date of the certificate is July 18, 2014.¹⁷ Dr. Tai’s position was directly opposed to that of Dr. Isles. He confirmed that he had prescribed Tylenol 3 for the Applicant’s pain and that, in his view, the Applicant was substantially unable to perform the essential tasks of his employment.

There are repeated references in Dr. Tai’s clinical notes and records to the Applicant suffering pain in his lower back and having limitations in range of motion. Dr. Tai’s notes are made with headings “Subjective” in which he reports the reason for the patient visit, and “Objective” in which he reports on his observations. Prior to completing the OCF-3 Disability Certificate in July 2014, Dr. Tai saw the Applicant on June 23, 2014, 6 months after the accident. The reason for the visit was “occasional back pains, steady, worse with movement, took Tylenol with little relief”. The Applicant reported that he did his exercises and attended physio once a week after completion of a 15 week program. He reported being “irritable and had a fear of driving, usually keeping excessive distances ahead of him, but with no nightmares”.¹⁸

In the summer of 2015, over 18 months after the accident, when the Applicant continued to report pain in his back, Dr. Tai sent the Applicant for an MRI of his back. The MRI did not reveal any disc protrusion or spinal stenosis that might account for the pain.¹⁹ The pain had long since met the definition of “chronic”, and Dr. Tai sent him to a chronic pain specialist, a Dr. Chizen, who recommended that the Applicant do more core exercises.

An orthopaedic assessment was conducted by Dr. Frederick Langer, an orthopaedic surgeon, on January 26, 2016. Dr. Langer noted in his report²⁰ that the Applicant can “manage chores” although repetitive or sustained bending causes back pain. He also noted that the Applicant indicated that his nursing work does have physical demands including transfers, assisting patients with gait problems, standing, walking and giving medications, but he has not lost time at work. The Applicant reported to Dr. Langer:

With therapy, his difficulties have essentially resolved EXCEPT, he remains with mechanical back pain, interfering with jogging. Although he denies other limitations, repetitive and sustained bending causes back pain.

Dr. Langer tested the Applicant’s range of motion and noted that “Lumbar spine movements were restricted to 50% of normal with end point lower back pain.”²¹

Dr. Langer noted:

It is possible that the Applicant is developing a Chronic Pain Disorder as a result of the MVA which is a behavioural disorder in which physically derived pain is perceived as more intense, intrusive, disabling and more recalcitrant to therapy.²²

Dr. Langer’s opinion was that the spinal impairment:

is serious as it has interfered with [the Applicant’s] sense of well-being, quality of life and ability to manage his pre-accident recreational activities byy (sic) compromising spinal functions important for managing this activity.

These spinal and the emotional impairments have not improved significantly, from a functional perspective, and are not expected to improve substantially in the future.²³

At an appointment on May 19, 2016, the Applicant complained to Dr. Tai that he was still having low back pains and attending physio twice a week. He complained that he cannot go jogging as it aggravates his back pain. Dr. Tai observed tenderness in the lumbar spine from L1 to L5 and over the SI joint. He noted the range of motion was reduced to about ½ in flexion and extension. The Applicant was referred to a specialist for pain management.

The Applicant was assessed by Dr. Sagar J. Desai, an orthopaedic surgeon. A report by Dr. Desai, dated October 7, 2016 (“Desai Report”)²⁴ was prepared following the assessment. Dr. Desai examined the Applicant after he had been involved in another accident in July 2016, but his report is clear that he is addressing the injuries suffered in the 2013 accident.

Dr. Desai concluded that the Applicant sustained a myofascial sprain/strain affecting the lumbar spine in the 2013 accident which has not resolved. His opinion was that the prolonged low back symptoms are compatible with the development of chronic pain. Consistent with the observations of Dr. Tai and Dr. Langer, Dr. Desai noted that flexion brought about right-sided lower back symptoms and the pain was:

reproduced significantly in his right lower back. On palpation he was palpably tender in the lower back on the right side and midline.²⁵

Dr. Desai identified “only minor findings on physical examination” but expressed the opinion that the Applicant’s subjective symptoms cause him significant issues on a daily basis. The limitations affect most of the Applicant’s daily activities including cleaning and all indoor household chores. His walking capacity is limited due to severe pain.

Dr. Desai recommended further treatment as follows:

Mr. Lamasan requires ongoing physiotherapy, and would likely benefit from a Chronic Pain Program to manage his low back. In addition to musculoskeletal pain, Mr. Lamasan also describes issues with agitation, irritability short-temperedness, anxiety, increased stress and driver anxiety. He also reports trouble with maintaining sleep, reduced hours of sleep, and frequently waking through the night. These psychological issues are well beyond the scope of my practice; however, he may benefit from a multimodal pain program which will help him address these issues.²⁶

Certas arranged an independent assessment of the Applicant on March 30, 2016 and a report by Dr. J. Muhlstock, a physiatrist, was prepared, dated April 1, 2016 (“Muhlstock Report 1”).²⁷ Therefore Dr. Muhlstock saw the Applicant after Dr. Langer saw him and before Dr. Desai saw him, and prior to the July 2016 accident. Also, Certas sent the Desai Report to Dr. Muhlstock who prepared a second report, dated October 25, 2016 (“Muhlstock Report 2”).²⁸

The purpose of the assessment that led to Muhlstock Report 1 was to assess the impairments suffered by the Applicant as to whether or not they were minor within the meaning of the MIG and also whether or not a treatment plan OCF-18 by Dr. D. Bertolo, in the amount of $1,240.00 for chiropractic services, was reasonable and necessary. On examination of the Applicant, Dr. Muhlstock found that there were no objective findings of any impairment, that the injuries were predominantly minor in nature and no further formal or clinic based treatment would be warranted or necessary.

Muhlstock Report 2 followed a paper review of the Desai Report. Dr. Muhlstock’s opinion was and remained (after review of the Desai Report) that any and all soft tissue injuries sustained had since resolved and the Applicant had achieved maximum medical recovery from a physiological perspective. He wrote in his review report:

In addition, his [the Applicant’s] clinical examination was essentially within normal limits, with no objective clinical findings of any physical impairment. The injuries sustained would be considered to fall under the Minor Injury Guideline. Given that all injuries have resolved with no objective findings of ongoing accident related physical impairment, no further formal or clinic based treatment would be warranted or necessary as a result of any injuries sustained in the accident.²⁹

I note that nowhere does he comment on the concept of chronic pain which lies at the root of the issue for Dr. Langer and the Desai Report, and is also commented on in Dr. Tai’s clinical notes.

Issue 1 - Is the Applicant entitled to receive a weekly income replacement benefit at the rate of $111.53 per week, from December 21, 2013 to September 20, 2014?

At the time of the accident, the Applicant was a student pursuing his nursing degree and was in the last year of a four year program. He had worked at a retail store selling aquarium fish during the period February 22, 2011 to August 17, 2013.³⁰ He testified that he worked there part-time during school and full-time during the summer. Included in the employment file³¹ is a job application, dated May 24, 2012, which includes the question, “CAN YOU LIFT UP TO 70 LBS.?”³²

His work involved assisting customers (standing and walking) and other duties as required of general help. Heavy lifting was required when the store received a delivery of shipping crates of water containing new fish stock to be sold, as well as when he carried and emptied buckets of water to refresh the water in the display tanks on a regular basis. The display tanks were stored on multiple levels. After the accident, he did not return to work there because of his injuries. He described the impact of his injuries in the Statutory Declaration³³ as follows:

Lifting – My wrist and lower back pain impacted my function Pushing/Pulling Carrying – wrist and back pain impacted this function Repetitive movement of my hand – wrist pain Walking, Standing Sitting – Lower back pain

He testified that his injuries to his back interfered with his bending and he was concerned that he would aggravate and later re-aggravate his injuries. Based on his evidence and review of the employment file, I find that but for the accident, the Applicant would have returned to the retail store on a full-time or part-time basis once he had completed the college requirements for his degree and while he waited to complete his regulator’s exams and find a job as a nurse.

The application for accident benefits including income replacement benefits was submitted on January 17, 2014.

Certas issued a revised Explanation of Benefits on February 6, 2014³⁴ and took the position that the Applicant qualified for an income replacement benefit and not a non-earner benefit.

There is no dispute as to the weekly quantum of the income replacement benefit, nor its start date.

In support of the application for income replacement benefits, the OCF-2 from the employer together with the family doctor’s clinical notes and records were forwarded to Certas on February 25, 2014.³⁵ By letter, dated March 28, 2014, Certas required authorization to obtain the police report.³⁶ In a separate letter of the same date, Certas required a Statutory Declaration before it would consider the income replacement benefits claim,³⁷ even though it had already issued an Explanation of Benefits on February 6, 2014 that the Applicant did qualify for such benefits. On April 3, 2014, Certas issued an Explanation of Benefits form indicating that it required a Statutory Declaration and also an election of benefits made on a form to be forwarded in the future.³⁸ The election of benefits was provided April 17, 2014 together with tax records from 2011 and 2012.³⁹

Certas did not pay any income replacement benefits in response to this material. When no income replacement benefits had been paid and when Certas denied an OCF-18, dated March 17, 2014, for a psychological assessment, an Application for Mediation was filed on April 8, 2014,⁴⁰ within two weeks of the denial of the OCF-18, and the Application for Arbitration was filed on July 25, 2014,⁴¹ with respect to the income replacement benefits as well as the denial of the March 17, 2014 OCF-18.

By letter, dated April 29, 2014, the Applicant’s representative sent an Accountant’s Report, setting out the calculation of the income replacement benefits owing to the Applicant and the supporting financial documents.⁴² In response, Certas issued another letter, dated May 9, 2014, requesting another Disability Certificate⁴³ and issued an Explanation of Benefits refusing to pay the invoice for the Accountant’s Report that it had received.⁴⁴ By letter, dated May 22, 2104, the Applicant’s Statutory Declaration was forwarded.

On January 9, 2016, Certas finally paid income replacement benefits in the amount of $4,355.62, inclusive of interest, for the period from the date of the accident to August 7, 2014. Counsel advised that another cheque representing additional interest in the amount of $154.09 had been sent to the Applicant but he testified that he had not received it. At no time has Certas shared with the Applicant the calculation it made of the income replacement benefits and interest.

Certas argues that the clinical placement at a hospital in the last term of the nursing degree program commencing in January 2014 was a reason to deny the benefits on the basis that it showed that the Applicant’s complaints as to his back pain are not genuine. Certas was also apparently unaware that the placement was not a paying position. The Applicant testified that he was not required to work in such a way as to require movements that aggravated his back. The assumption inherent in Certas’ position is that if he could do nursing work, then he could do the work at the retail store. I accept the Applicant’s evidence and conclude that the work he did in the clinical placement did not involve the same lifting, bending and carrying that the retail store work required.

Certas also attacks the credibility of the Applicant’s claim because in June 2014, he took a two to three week position as a driver for a businessman who required a driver to take him from one business to another in the western part of the GTA. He was finished every work day by 4:00 p.m. Certas had not paid any income replacement benefits by this stage, despite consistent and constant efforts by the Applicant’s representatives. It is quite understandable that the Applicant would have been forced to take any job he could get and there were certainly advantages for him in this job. It appears he had no duties other than to drive the businessman and, therefore, while the businessman was in the office, the Applicant would have been free to move around, stretch, walk and do whatever he needed to do so as to address any back pain that might be caused by sitting in the car driving. He was not lifting, carrying weight and bending very much in that job.

Certas’ position is that the complaint of nervousness driving is not a genuine complaint because the Applicant took this job. The Applicant has never said that his nervousness made it impossible for him to drive; his complaint is that he was irritable and prone to road rage as well as being nervous, and that he avoided driving where he could.

The Applicant was hired in a permanent full-time position as a nurse at a hospital and commenced work on September 20, 2014.

Certas informed the Applicant that he was not entitled to benefits for income replacement, effective August 7, 2014,⁴⁵ based on the Isles Report and the report of Dr. J. Goodman, which will be discussed later.

I prefer the evidence of the Applicant and the opinion of the Applicant’s family doctor as to whether or not his impairments made him substantially unable to perform the essential tasks of his employment, over that of Dr. Isles. She failed to complete an essential part of her report in her answers to the questions concerning the Applicant’s impairments and the impact on his resuming employment. Her finding that there was no objective evidence of impairment is conclusory only and I looked in vain for any analysis in her report as to the nature of the work at the retail store, the impact of his lower back pain on that work and why the Applicant would continue to experience pain in his lower back.

Dr. Tai’s notes and records show consistent complaints on the part of the Applicant that his lower back hurt and was interfering in his activities of daily living and constrained his ability to work while he waited to get a nursing job. I accept that, but for the accident, the retail store would have hired him back, as they had previously as he was noted as a good employee.

I find that the Applicant has established that he was substantially unable to carry out the essential tasks of his employment in the retail store for which he had been employed for 26 weeks of the 52 weeks prior to the accident and that he is entitled to income replacement benefits for the period from the date of the accident to his commencement of work as a nurse on September 20, 2014.

Issue 2 - Are the benefits to which the Applicant is entitled as a result of the motor vehicle accident limited to the benefits under the MIG?[^46]

On the February 6, 2014 Explanation of Benefits (at page 2 of 4 of the form) referred to above, Certas notified the Applicant that his medical and rehabilitation expenses were submitted under the MIG and that he was not eligible for attendant care expenses because his impairment is a minor injury. This position was affirmed with respect to his entitlement to an in-home assessment. The medical assessments by Dr. Isles and Dr. J. Goodman supporting this position were not conducted until April and July 2014 and the reports were not provided to the Applicant until August 1, 2014.⁴⁷

A number of Explanation of Benefits documents were included in Exhibits 1, 2 and 3. A number of them contained denials because of lack of information. A further Disability Certificate was required in May 2014. Others did affirm Certas’ position that the injury was a minor one.

Certas’ position on whether or not the Applicant’s injuries fall within the MIG is, however, not consistent on the record. At Tab 61 is a fax back by Certas, partially approving a treatment plan, dated June 6, 2014, for chiropractic treatment. In the Comments section, Certas said, in part:

Approval has been given for $1385.00 as the $3500.00 Minor Injury Limit has now been exhausted.

Less than two years later, Certas approved a treatment plan in excess of the $3,500.00 limit. Tab 66 in Exhibit 3 is a letter, dated February 23, 2016, from Certas to the Applicant, informing him of approval of a treatment plan dated November 16, 2015, from Vaughan Wellness Clinic for chiropractic services in the amount of $1,425.00 and $200.00 for an assessment. The Standard Benefit Statement attached to this letter includes in a block the following information:

Medical and Rehabilitation Policy Limit: $3,500.00 Total Paid since accident: $4,239.75 Total amount of Medical & Rehabilitation benefits remaining under policy $0.00

Therefore Certas was prepared, at this date, to pay benefits totalling $5,844.75, well above the MIG limit. Therefore, Certas’ position was not consistent that the Applicant still fell within the MIG. It was only after Certas had approved this treatment plan that Dr. Muhlstock was retained to provide his opinion in Muhlstock Report 1 referred to above. No evidence was led by Certas to explain why it approved this treatment plan over the MIG limit.

Certas’ counsel says that there would be a chill on Insurers approving treatment if it were to be found that, on paying benefits above $3,500.00, an Insurer was taken to have resiled from its position that the MIG applied to a particular case.

Arbitrator Stramwasser in Ferawana and State Farm Mutual Automobile Insurance Company⁴⁸ succinctly set out reasoning on which he found that a failure to follow a procedural requirement in s. 38 resulted in the Insurer being prohibited from raising the MIG limit on all treatment plans, not just the one where it failed to raise the issue. In that decision, Arbitrator Stramwasser set out the stated objectives of the MIG, including providing certainty around cost and payment for Insurers and regulated health professionals. Certas’ position opens the possibility that an Insurer could approve treatment and then change its mind after the Insured had incurred the cost and the funds had in fact been paid to the service provider. This would expose service providers to uncertainty and Applicants to repayment claims even when their treatment had been agreed to by the Insurer, undertaken with knowledge of the Insurer, and paid for by the insurer. Such an interpretation would be contrary to the consumer protection policy underlying the Schedule.

In addition, I find that, on the balance of probabilities, there is sufficient evidence concerning chronic pain to find that the impairments no longer fall within the MIG definition. The Applicant continues to suffer pain which interferes with his normal activities, bearing in mind his age and occupation, for which there is ample expert observation. He exhibited the pain during the assessments by Dr. Isles and Dr. Muhlstock, as well as during the examinations by Dr. Langer and Dr. Desai. The Progress Reports from Active noted ongoing range of motion limitations as well. His family doctor, Dr. Desai and Dr. Langer believe that the Applicant may suffer from chronic pain syndrome. Therefore a multimodal approach is recommended.

The Applicant has been an assiduous compliant patient, who has actively participated in his treatment. He was an active, athletic person who ran regularly prior to the accident. He tried to resume running after the accident and his back pain prevented him from doing so. He was compliant with his treatment approved by Certas and he has continued to get treatment using his collateral benefits to fund it. He has changed service providers when he felt the treatment progress had stalled. Despite these efforts, he continues to suffer pain and his family doctor has noted chronic pain and referred him for that assessment. Dr. Muhlstock, in his Muhlstock Report 2, obtained after Dr. Langer and after Dr. Desai had identified the issue of chronic pain, does not address the issue and I find it is an inadequate response by Certas to the issue.⁴⁹

I find that Certas has approved treatment in excess of the MIG limit and therefore cannot now argue that the MIG limit applies to refuse treatment plans that are otherwise reasonable and necessary. I also find that the Applicant’s impairments, if they first fell within the MIG, no longer do so, and he will not achieve maximal medical recovery if he were to be limited to the $3,500.00 limit under the MIG.

Issue 3 - Is the Applicant entitled to receive a medical benefit claimed in the amount of $2,572.48, for psychological treatment by Bodnar & Associates, dated August 27, 2014?

Issue 4 - Is the Applicant entitled to payment for the cost of an examination in the amount of $2,001.78, for a psychological assessment by Bodnar & Associates, dated March 17, 2014?

A treatment plan was submitted by Dr. Bodnar for psychological assessment and testing and evaluation in the amount of $2,001.75 on March 17, 2014.⁵⁰ Certas denied the OCF-18 on March 28, 2014 because of insufficient medical information in support of the treatment plan,⁵¹ and it arranged an Insurer Examination by Dr. Goodman. The only other Explanation of Benefits in the evidence before me denying the approval of an OCF-18 by Dr. Bodnar is noted as being in the amount of $2,001.75 (Tab 27 of Exhibit 1) and is dated September 30, 2014.⁵²

It is important to note that the treatment plan was submitted within four months of the accident and set out as additional information as a Pre-Screening Report in the OCF-18. The Pre-Screening Report indicates at page 6 of 6:

[The Applicant] shared that since the accident he has become more short-tempered and has been arguing more often with his family members, and he has become less patient. He reported that he resents the changes in his life as he had an active life style and since the accident he has been bothered by the lower back pain that has not improved much and he has not been able to enjoy the physical activities, running and working out, as he did before the accident. In regards to his driving he stated that he drives every day but he has become extra cautious when driving.

The goals of the treatment plan were pain reduction and to address and treat anxiety and depression, and to allow the Applicant to return to activities of normal living and return to pre-accident work activities. The pre-screening report expanded on the purpose of the psychological assessment. The purpose of the psychological assessment, along with “a short course of psychotherapy sessions”, was to help him learn to better cope with his frustration because of the pain and to help him with strategies to better manage anger and frustration.

As noted above, the OCF-18 was denied and an Insurer Examination by Dr. Goodman was arranged. In April 2014, the Applicant was assessed but no report was provided from this assessment until August 1, 2014. Dr. Goodman testified that the reason his assessment report was not delivered earlier was that the report was to be delivered with the Isles Report. This delay is particularly problematic in the case of psychological assessment. In the meantime, a further Disability Certificate had been required by Certas that was completed by Dr. Tai. In it, he noted the Applicant’s anxiety as a “phobia”.

Psychological treatment was further proposed in the amount of $2,572.48 by Dr. Bodnar under an OCF-18, dated August 27, 2014, and the treatment was in fact provided. The Applicant testified that the treatment was helpful in dealing with his driver anxiety and his irritability.

To appreciate the driver anxiety claim, it is important to look at the circumstances of the accident.

The Applicant testified that before the accident, he had enjoyed driving. After the accident, he did not, and he would avoid driving if he could, especially in rush hour traffic. In the immediate aftermath of the accident, he saw cars speeding past the accident while he waited for the tow truck and thought it was careless of them, given the driving conditions and vehicle pile-up which had so recently brought his car into an accident. He complained to his family doctor and others of his anxiety and of his becoming irritable to the point of road rage. He testified that his psychotherapy treatment had given him techniques of coping with his anger and irritability.

The Clinical Progress Notes of the psychotherapy sessions that were held November 27, 2014 to June 10, 2015 were included as Tab 40 in Exhibit 2. These notes document road rage incidents reported to the therapist by the Applicant. They also document stresses on his personal relationships and his ongoing fear of driving. By the fifth session, the tone of the notes and the observations of the Applicant start to be more positive. There was no further OCF-18 submitted requesting approval of more sessions after the conclusion of the eight sessions.

Certas challenges the credibility of the Applicant as to his driver anxiety because of the fact that he worked for two or three weeks as a driver for a businessman, driving in rush hour from one of the businessman’s offices to another in the GTA. Dr. Bodnar testified that the best treatment for driver anxiety is to drive and therefore, the job is not a sign that there is no driver anxiety but rather that the Applicant has aggressively sought to overcome it.

Dr. Goodman’s report, dated July 21, 2014 (“Goodman Report 1”), sets out the testing that he did and his interview of the Applicant. He reported that the Applicant told him that he keeps a good distance behind the car in front of him and that the drivers behind him may honk or flash their high beams. He reported feeling irritated when this happens. He did not report any emotional distress or discomfort during his taxi ride to the assessment or pedestrian anxiety. Dr. Goodman conducted four tests on the Applicant and concluded that the tests did not provide evidence that the Applicant was experiencing a substantial psychological impairment as a result of the accident. His view was that the residual psychological symptoms that the Applicant presently experienced were minor in nature and that he did not, at that time, suffer a substantial psychological inability to perform the essential tasks of his pre-accident employment at the retail store. His view was that the OCF-18 treatment plan of March 17, 2014 was not reasonably required.

It was never the Applicant’s position that he could not return to his employment because of his driver anxiety; the problem with his employment at the retail store was initially his wrist and his lower back pain, and then his prolonged lower back pain.

Certas in effect refused to approve the Applicant having his own psychological assessment by a psychologist of his own choosing but then arranged for a psychological assessment by a psychologist of its choosing. I find the OCF-18 of March 17, 2014 was properly supported by the Pre-Screening Report, was done by qualified individuals, and proposed reasonable goals to be achieved at a reasonable cost, particularly in the context of the timing, about four months after the accident. I find this treatment plan is reasonable and necessary to properly assess the impairment suffered by the Applicant with respect to his irritability and road rage which had the potential to create a safety issue for both the Applicant and others.

With respect to Issue 3, the psychological therapy treatment plan, a Psychological Report by Dr. Bodnar, was filed as Tab 25 of Exhibit 1 (“Bodnar Report”). The psychological assessment was conducted on August 21, 2014. The assessment was conducted by Else Silva, M.A., and it consisted of different tests than those used by Dr. Goodman. In this assessment, the Applicant was reported as being concerned with his anger and his anxiety around his driving, that he drives frequently but when possible, he avoids driving at certain time to some places. He indicated he had flashbacks about the accident when he was driving and someone cut him off or “[did] something stupid behind the wheel.” He reported that he engaged in road rage behaviours when someone cut him off and since the accident, he has had difficulty controlling his anger. The image he has in his mind after the accident was of drivers speeding close to the accident site. Also, the Applicant reported sleep difficulties.

Dr. Bodnar concluded that the Applicant has an Adjustment Disorder with Anxiety and Specific Phobia: Driver Anxiety. She recommended eight 90 minute counselling sessions over a period of three to four months of cognitive-behavioural psychotherapy treatment and anger management sessions. Her opinion was that that the MIG did not apply because an Adjustment Disorder is not covered by the MIG. Her opinion was that without treatment, the Applicant’s condition could worsen. She noted that he was highly motivated to return to his pre-accident level of function.

Dr. Goodman and Dr. Bodnar both testified and both were cross-examined with respect to their conclusions. After production of the Bodnar Report, Dr. Goodman provided a Paper Review Report, dated October 8, 2014 (“Goodman Report 2”). This report is substantially word for word from passages of his first report. In his analysis section of the Goodman Report 2, he indicates that the results of his assessment did not provide evidence to support the diagnoses listed in the OCF-18 submitted by Dr. Bodnar. He recites his earlier report conclusion that the psychological assessment proposed by Dr. Bodnar was not required and concludes that the Bodnar Report does not provide “compelling evidence” that would cause him to alter his opinions stated in the earlier report. He does not explain why his conclusion should be preferred over that of Dr. Bodnar or outline any weaknesses in the testing done. Therefore, his report is essentially the expression of a conclusion without setting out the steps by which he arrived at that conclusion. He had the opportunity to provide that support in the text of his report and he did not do so. When Certas attempted to elicit that information during the Hearing, I held that Dr. Goodman could not at that late date provide that information. The time for that was in his report so that the Applicant had notice in advance of the Hearing.

Both Dr. Goodman and Dr. Bodnar are well qualified to express opinions on the issue of the psychological impairment in this matter. Certas attacks the Bodnar Report on the basis that the assessment interview was conducted by someone who is not in fact a clinical psychologist and that there is no evidence of the individual’s qualifications or the nature of the work-sharing that led to the Pre-Screening Report and the Bodnar Report. In fact, both the OCF-18, dated March 17, 2014, as well as the Bodnar Report contain the details of the qualifications of Ms. Silva and that she conducted her work under Dr. Bodnar’s supervision and in accordance with the regulator’s requirements. Dr. Bodnar was cross-examined on the level of supervision as well as Ms. Silva’s qualifications and I am satisfied that the opinions expressed in the Bodnar Report and the Pre-Screening Report are based on work done by someone qualified to do the work and supervised properly by Dr. Bodnar.

Dr. Tai’s clinical notes and records as well as the Disability Certificate provided over six months after the accident provide evidence that the driver anxiety suffered by the Applicant continued into the summer of 2014. The Applicant also provided evidence in support of this issue, describing his difficulties.

Certas approved a treatment plan for further chiropractic treatment for pain relief submitted in November 2015. The Applicant’s frustration in 2014 at his inability to become pain free despite his efforts is clear on the record and he testified that the psychotherapy assisted him in coping with his impairments. It is also clear from review of Dr. Bodnar’s Progress Reports that there is a definite connection between positive outcomes on the psychological issues and physical activity which might be impaired by the ongoing low back pain.

The OCF-18, dated August 27, 2014, was directed to the injury described as “Mixed anxiety and depressive disorder” and specific phobia. The goals were the same as in the OCF-18, dated March 17, 2014. On September 16, 2014, a little over 6 weeks after disclosing the Goodman Report 1, Certas wrote the Applicant that it would not pay for the goods and services in the OCF-18 dated August 27, 2014, in the amount of $2,572.48, and would be conducting an Insurer Examination. Specifically, the reason given was:

Based on prior Insurer Examination reports, you have sustained a predominantly minor injury, a psychological impairment was not identified. Available coverage limit is $1325.00. At this time the insurer will request second opinion of the proposed counselling.

An Application for Mediation with respect to this OCF-18 was filed October 1, 2014, indicating that this OCF-18 had been denied September 9, 2014. There is no Explanation of Benefits in the Exhibits that reflected any consideration by Certas of the Goodman Report 2.

I find that the goals and the treatment proposed in the OCF-18 of August 27, 2014 proposing psychotherapy were reasonable and appropriate in the context of this Applicant and the accident that he was involved in, and the issues he identified in the aftermath. Therefore, I find the OCF-18 was reasonable and necessary and that inadequate reasons were given for its denial. I have no evidence that Certas reviewed Dr. Goodman’s Review Report and I find that no Explanation of Benefits was provided to the Applicant subsequent to receipt of that report reflecting an adjuster’s consideration of the report within the time period required under the Schedule.

Issue 5 - Is the Applicant entitled to receive payment for an expense of $2,260.00, for an Accountant’s Report by Great Oak VFA Inc., dated April 25, 2014?

The Applicant claims the cost of a report to calculate the amount of the income replacement benefit to which he is entitled. There is no argument that he should have calculated it himself. The claim was made and supported by his former employer. Certas acknowledged in February 2014 that he was entitled to it.

Certas has never disclosed to the Applicant the basis of the calculations that led to the cheques that it says it has sent. It did not pay any income replacement benefit for a period of over two years after the accident. The delay is blamed by Certas on it needing to know whether or not the clinical placement paid anything to the Applicant.

I find that it was reasonable for the Applicant to secure the Accountant’s Report in face of Certas’ failure to communicate its own calculation of benefit. Therefore, I find this is a reasonable expense that should be paid by Certas.

Issue 6 - Is the Applicant entitled to payment for a cost of examination in the amount of $1,994.72, as per an OCF-18 dated November 4, 2015, by Dr. F. Langer of Healthway Medical Management?[^53]

Dr. Langer proposed a full body assessment. His report of January 26, 2016, referred to above, was probably prepared as a result of the assessment undertaken despite the fact that Certas denied the OCF-18. As noted above, Certas approved in January 2016 a treatment plan submitted by Dr. Bertolo, who was a treating chiropractor, in November 2015.

The onus is on the Applicant to provide evidence that this assessment was reasonable and a reasonable cost in light of the other circumstances of the case. The assessment has been referred to in this decision as being relevant to the claim that the impairments are not within the MIG. This assessment was done two years after the accident and just prior to Dr. Muhlstock’s assessment. It is useful in documenting the status of the Applicant’s injuries and in supporting the views the family doctor noted in his clinical notes and records referenced above. Therefore, I find that this is a reasonable expense that should be approved.

Issue 7 - Is the Applicant entitled to interest on overdue benefits?

The Applicant is entitled to interest on overdue benefits.

EXPENSES:

The Applicant has been successful in this matter. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 23, 2017

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 16 FSCO A14-006115

BETWEEN:

JOHN LAMASAN Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is entitled to receive a weekly income replacement benefit at the rate of $111.53 per week, from December 21, 2013 to September 20, 2014, less any amounts paid.

2. The benefits to which the Applicant is entitled as a result of the motor vehicle accident are not limited to those under the MIG.

3. The Applicant is entitled to receive a medical benefit claimed in the amount of $2,572.48, for psychological treatment by Bodnar & Associates, as per an OCF-18 dated August 27, 2014.

4. The Applicant is entitled to payment for the cost of examination in the amount of $2,001.78, for a psychological assessment by Bodnar & Associates, as per an OCF-18 dated March 17, 2014.

5. The Applicant is entitled to receive payment for an expense of $2,001.78, for an Accountant’s Report by Great Oak VFA Inc., dated April 25, 2014.

6. The Applicant is entitled to payment for the cost of examination in the amount of $1,994.72, as per an OCF-18 dated November 4, 2015, by Dr. F. Langer of Healthway Medical Management.

7. The Applicant is entitled to interest for the overdue payment of benefits.

8. The Applicant is the successful party and is entitled to his expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 23, 2017

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Superintendent’s Guideline 02/10.
3. 3Scarlett v. Belair, [2013] O.F.S.C.D. No. 227, at p. 2.
4. 41951 CanLII 252 (BC CA), [1951] B.C.J. No. 152, at para. 11.
5. 5See for examples Exhibit 1, Tab 19, Report of Dr. Kathleen Isles, July 21, 2014 (“Isles Report”), at p. 14; Tab 18, Report of Dr. John Goodman, July 21, 2014 (“Goodman Report 1”), at p. 9.
6. 6[2004] O.F.S.C.I.D. No. 60, at paras. 36 to 38.
7. 7[2000] O.F.S.C.I.D. No. 139; see also Violi and General Accident Assurance Company of Canada, [2000] O.F.S.C.I.D. No. 171, at para. 13.
8. 8Chan v. CAA Insurance Company (Ontario), at para. 38.
9. 9Exhibit 1, Joint Arbitration Document Brief, Tab 16, Statutory Declaration of the Applicant, pages 3 and 5.
10. 10Exhibit 1, Tab 5, Patient Encounter Note, December 16, 2013; Best Care Imaging Report, December 17, 2013.
11. 11Exhibit 1, Tab 2.
12. 12Exhibit 1, Tab 3.
13. 13Exhibit 1, Tab 11, April 11, 2014; Tab 28, October 7, 2014; Tab 34; see also Tab 48, Progress Report, October 7, 2014.
14. 14Exhibit 1, Tab 55.
15. 15Exhibit 1, Tabs 5, 20, 48 and 56.
16. 16Exhibit 1, Tab 19, pages 13, 15 to 17.
17. 17Exhibit 1, Tab 20.
18. 18Exhibit 1, Tab 48, Patient Encounter Note, June 23, 2014. See also Patient Encounter Notes, August 26, 2014, September 5, 2014, May 19, 2015 and October 7, 2015. I note that there were only two other visits with Dr. Tai for any other reason in this period of 14 months.
19. 19Exhibit 1, Tab 39, Lumbar Spine MRI, dated August 16, 2015.
20. 20Exhibit 1, Tab 49.
21. 21Ibid., at p. 5.
22. 22Ibid., at p. 7.
23. 23Ibid., at p. 7
24. 24Exhibit 1, Tab 57.
25. 25Ibid., at p. 5.
26. 26Exhibit 2, Tab 57, at p. 9.
27. 27Exhibit 2, Tab 53.
28. 28Exhibit 2, Tab 58.
29. 29Ibid., at p. 3.
30. 30Exhibit 1, Tab 33, at p. 8.
31. 31Exhibit 1, Tab 33, pages 4 to 18.
32. 32Ibid., at p. 10.
33. 33Op. cit., Tab 16.
34. 34Exhibit 1, Tab 4.
35. 35Exhibit 1, Tab 5.
36. 36Exhibit 1, Tab 7.
37. 37Exhibit 1, Tab 8.
38. 38Exhibit 1, Tab 10.
39. 39Exhibit 1, Tab 12.
40. 40Exhibit 1, Tab 9.
41. 41Exhibit 1, Tab 17.
42. 42Exhibit 1, Tab 13.
43. 43Exhibit 1, Tab 14.
44. 44Exhibit 1, Tab 15.
45. 45Exhibit 1, Tab 21. Note that Certas also included in this letter the denial, based on the independent assessments, of the OCF-18, dated March 17, 2014, Issue 4.
46. 47Exhibit 1, Tab 21.
47. 48Ferawana and State Farm Mutual Automobile Insurance Company (FSCO A13-005319, August 29, 2016).
48. 49See Arruda and Western Assurance Company (FSCO A13-003926, July 7, 2015) for another example of a case where an Applicant initially fell within the MIG and was taken out of it at a later date.
49. 50Exhibit 1, Tab 6
50. 51Exhibit 3, Tab 60, March 28, 2014 letter. The reason given is “We are arranging an Insurer Examination to assist in determining whether the plan relates to injuries from the accident and is reasonable and necessary as we have insufficient information to make this determination.”
51. 52At page 2 of 3 of the Explanation of Benefits, Certas refers to an assessment or examination by Dr. Ana Bodnar in the amount of $2,001.78, the amount of the OCF-18, dated March 17, 2014.
52. 46Superintendent’s Guideline 02/10.
53. 53Exhibit 2, Tab 45.